Looking into the history of Asean, one sees a veritable graveyard of unfulfilled attempts at greater cooperation and coordination. Indeed, Asean is distinguished by its continued and adamant association with the principles of state sovereignty and noninterference. Whether or not this approach works is widely debated, and there is no dearth of articles and books examining its effects. But in an increasingly integrated world, there are some areas that demand real attempts at coordinated effort. So hope was high that the birth of the Asean Intergovernmental Commission on Human Rights last year would blaze the trail on coordination.
Officially announced in October 2009 at the 15th Asean Summit, the commission held its first formal session in late March and quickly showed its true colors. As many disappointed human rights activists were quick to remark, instead of coming out with teeth gnashing, it whimpered out, barely able to nibble. It seems that this is no all-powerful, all-encompassing human rights council that can be trumpeted as a way to enforce the observance of human rights in Southeast Asia and admonish nations turning a blind eye. It is in its early days, but given Asean’s history, more growl can hardly be expected anytime soon.
For many observers, the AICHR seems unlikely to make any real or effective strides at improving human rights in Asean countries. The terms of reference that were released in October prohibit the organization from being an effective enforcer. It lacks the authority to investigate, prosecute or impose punishments for violations. There is no mechanism for lodging complaints or interacting with civil society. It doesn’t have a peer review system, which could enhance its ability to name and shame.
The commission will make its decisions based on consensus. Governments, rather than the commission itself, will appoint and dismiss commissioners, greatly increasing the likelihood that they will be tied to individual states. Independent observers are not encouraged. The inaugural meeting at the end of March was not open to the public, it only dealt with housecleaning issues and it failed to produce a draft of organizational procedures that would determine its operations. All these prohibitive and restrictive aspects increasingly make the organization weaker than the sum of its parts might auger.
It must be noted also that many of the states involved are not the most human rights-friendly. Burma is an international human rights pariah and other states have a history of, and are still dealing with, repressive and abusive state actions (admittedly while quietly reforming themselves from within).
Furthermore, one should keep in mind the complicated realities into which this organization has been born. Asean itself is a rather loose (some say dysfunctional) organization that works on consensus, something that is not easy to achieve in a group so diverse. There has been an emphasis on noninterference and states’ rights, which is, in part, understandable given the struggles many have internally.
Still, whatever internal challenges each Asean member state is presently dealing with, there has been a change of attitude since the 1990s about the importance of human rights. This is especially impressive given that before then, the organization had no interest in discussing governance issues at all. And for all its ineffectiveness in some arenas, Asean remains an important player in regional politics, making its decisions important to how the region will develop. As such, it is impressive that AICHR has been set up at all and that it is making its first tentative steps toward being an effective rights organization.
That being said, it is still unclear how the AICHR will develop. One key to determining its evolution will be the rules of procedure, when they are finally decided on. These rules have the possibility of increasing the range of activities that the organization may be able to undertake. But if the delay in their release is indicative of back-room horseplay, and the member states involved are not serious about this process, this does not bode well.
Also important will be the extent to which the AICHR decides to engage civil society. Organizations were not allowed to meet with the commissioners at the first meeting, and their input was neither canvassed nor accepted through discussions on the rules of procedures. Nominally this was because there was no mechanism set up for dealing with them; Developing this mechanism and engaging civil society will be key to improving the legitimacy of the organization.
Equally important will be the representatives the countries choose in the future, who are going to be important in determining the direction of the body. So far, this isn’t looking good. Indonesia and Thailand were the only countries to have an open selection process for their representatives; the rest have mostly chosen rather unconvincing commissioners, who either have ties to their respective regimes or were part of the High Level Panel that drafted the oh-so-criticized terms of reference.
There will also have to be a re-evaluation of decision by consensus. As mentioned before this is a wider issue relating to how Asean conducts much of its business, but there is no way a human rights council dependent on consensus for decision making can have any sense of legitimacy when members such as Burma have equal status on vetoing resolutions. In this sense, Asean should not be afraid that the commission will be a troublemaker. If business as usual is going to change in Asean, perhaps it is time that a commission like this one be allowed to shake things up.
In this, Indonesia may prove the strongest candidate. As one of the most liberal and advanced countries in the region both in terms of its current mode of governance and its recent attempts at improving its own human rights record, and as the largest and thus the “leading” nation in the group, Indonesia could prove a catalyst or a hindrance for the development of respect for human rights. So far, the signs are good. As mentioned, it was one of two countries to be transparent about selecting a commissioner. Rafendi Djamin, as well as being a respected human rights campaigner, could potentially also be a key component to bringing civil society into the process, if allowed.
Indonesia also championed the move to include a provision in the terms of reference requiring that the organization be reviewed every five years, in the hopes of letting it evolve into a more powerful organization. Indonesia needs to continue on this path, and not give up its efforts to influence for the good.
If nothing else, the creation of the AICHR is sparking important debate. Knowledge about human rights in Southeast Asia is not widespread and if the attitudes and actions of the governments are going to change, the public needs to be made more aware of them. Currently, just allowing the AICHR to promote human rights will be a step in the right direction.
It is important to keep in mind that the AICHR is a very young organization — less than a year old. It is important to harbor realistic expectations about what it can do. But Indonesia can’t champion it alone. If the other members are listening: Civil society, and the future of human rights in the region, depends on you.
By Laura Jepson policy development program officer at Strategic Asia, a Jakarta-based consulting firm promoting cooperation among key Asian countries.
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